1607261 (Refugee)

[2019] AATA 3419

1607261 (Refugee) [2019] AATA 3419 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607261

COUNTRY OF REFERENCE:                   Kyrgyzstan

MEMBER:C. Packer

DATE:22 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 January 2019 at 2:10pm

CATCHWORDS

REFUGEE – protection visa – Kyrgyzstan – member of same family unit – ex-husband business connections – threat by ex-husband’s business partner – alleged poisoning by business partner – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a woman [age], born in Kyrgyzstan and a citizen of Kyrgyzstan.

3. The applicant last arrived in Australia [in] March 2014, as a holder of a [temporary] visa, and had travelled on a Kyrgyzstan passport issued [in] 2012 and valid to [2022].

4. On 18 June 2014 the applicant applied for a Protection (Class XA) visa.

5. On 21 April 2016 the applicant attended an interview with a delegate.

6. On 29 April 2016 the delegate refused the application.

7. On 2 May 2016 the applicant applied for review of the delegate’s decision.

8. On 29 November 2018 the applicant attended a Tribunal hearing.

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

10. The applicant’s narrative is centred on a business dispute between her former husband and his business partner in Kyrgyzstan.  She claims the business partner had pressured her to get her husband to sell his shares and the business partner also harmed her and he would harm her on her return to Kyrgyzstan. However, my credibility concerns with significant elements of the applicant’s narrative and evidence lead me to find that the business partner did not harm her in Kyrgyzstan. I find that she is now divorced and has had no connection with the business for several years and in Kyrgyzstan she does not face serious or significant harm from the former husband’s business partner. My assessment follows.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

1. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing. In the written application, the applicant stated that she was born in [Kyrgyzstan]. Her ethnic group is Kyrgyz. She knows Russian and Kyrgyzian. She completed a [qualification] in [date] and she had past work [in various occupations] in Bishkek (July 2010 to March 2014). She married [Mr A], [an overseas] citizen and an Australian permanent resident in Bishkek [in] September 2011. She subsequently travelled to Australia three times to visit [Mr A’s] family. She stated she separated from her husband when he deserted her in Australia in May 2014.

2. At the hearing the applicant said she had brought proceedings in Kyrgyzstan to divorce her former husband, and the divorce was formalised [in] May 2016 in Kyrgyzstan. She provided a Kyrgyz Divorce certificate. In Australia she works in [a certain industry]. Her mother and other relatives continue to live in Bishkek.

3. The applicant’s protection visa application showed travel to Australia from:  [September] to [November] 2013; [December] 2012 to [January] 2013; [September] to [October] 2012. As well she travelled for tourism to [Country 1] in December 2011 and [another country] in August 2012.

4. A country profile[1] for Kyrgyzstan states that Kyrgyzstan is a Central Asian state bordering China. Kyrgyzstan became independent with the collapse of the Soviet Union in 1991. It has some oil and gas and a developing gold mining sector, but relies on imports for most of its energy needs. The country's first two post-Soviet presidents were swept from power by popular discontent. Settled by Kyrgyz tribes from southern Siberia in the 17th century, the area was ruled by various regional powers before coming under Russian, and then Soviet, rule. Most of its six million people are Turkic-speaking Muslims. In October 2017 Sooronbai Jeenbekov became Kyrgyzstan's fifth president.

   [1] BBC News country profile, 26 February 2018, [ of claims

5. The applicant claims to fear persecution in Kyrgyzstan from [Mr B] who had been a business associate of her former husband. Her key claims as summarised are:

   ·In 2008 [Mr A] and his business partner [Mr B] founded [Company 1] in Kyrgyzstan. In December 2011 they had a major conflict and after this the husband never returned to Kyrgyzstan because he feared [Mr B].

   ·The applicant was an [Occupation 1] in the business and in January 2012 she had dinner with [Mr B] who verbally threatened her about the sale of the husband’s majority shares in his favour.

   ·After the dinner she became ill and believed she had been poisoned. But she was unable to get evidence because: “But it appeared that [Mr B] negotiated with doctors and they told me that I was not poisoned but brought sickness from [overseas]”.

   ·In the periods she was in Kyrgyzstan from January 2012 to July 2013 she was pressured to get the husband to sign documents.

   ·In July 2013 [Mr B] phoned her a couple of times and demanded she convince the husband to sell the husband’s shares. Some men tried to enter her apartment in July 2013 but fled when the police came.

   ·[In] July 2013 her husband gave a Power of Attorney to her concerning the business. [In] August 2013 she gave a Power of Attorney concerning the business to a lawyer.

   ·She was in Australia from [September] to [November] 2013, and then returned to Kyrgyzstan. She ceased her employment in March 2014 and returned to Australia on [March] 2014. In Australia she and the husband separated in May 2014.

   ·She fears to return to Kyrgyzstan because she will continue to be viewed as her husband’s representative, and [Mr B] will harm her. The police cannot protect her as they are corrupt. [Mr B] continues to visit her mother to ask when she is returning to Kyrgyzstan.

   Evidence

6. The evidence before the Tribunal includes the following material (not all is listed):

   ·the Departmental file

   ·the applicant’s Protection visa application form lodged on 18 June 2014, which includes a statement giving reasons for seeking protection in Australia

   ·passport pages and identity documents, divorce certificate, hotel invoice

   ·the Protection visa decision record (‘delegate’s decision’) dated 29 April 2016, which is the subject of this review

   ·the application for review, which has attached to it by the applicant a copy of the delegate’s decision

   ·Powers of Attorney dated [July] 2013 and [August] 2013

   ·documents concerning [Company 1]

   ·divorce certificate dated [in] November 2016 from Kyrgyzstan

   ·submission of 6 December 2018

7. The applicant appeared before the Tribunal to give evidence and present arguments, on 29 November 2018. Her representative was present. The hearing was conducted with the assistance of an accredited interpreter in the Russian and English languages. The applicant stated she understood the interpreter, and during the hearing she did not tell me she had any difficulties with the interpretation. She also understood English and much of the hearing proceeded in English.

8. At the start of the hearing I asked whether she was well and able to talk about her story, and she stated she was. During the hearing she appeared to fully understand questions and she gave coherent answers and explanations.

9. She provided documents at hearing, and post-hearing a submission dated 6 December 2018. The submission stated the applicant admits there were discrepancies in her evidence about how she quit her employment in Kyrgyzstan but submitted she was in a state of stress and depression at that time and at the time of hearing and so she could “not clearly chronologically recollect all the action she had taken four years ago”. However, at hearing the applicant did not raise any claims of stress and depression affecting her memory of past events. I considered the applicant’s evidence including her evidence at hearing in light of this submission, but in light of my assessment at hearing that she appeared to fully understand questions and she gave coherent answers and explanations, I assess that she was competent to give evidence and had a full opportunity to put forward her story and arguments.

   Assessment of claims

10. The applicant claims to be a national of Kyrgyzstan. I sighted her Kyrgyzstan passport at the hearing and partial photocopies were made. All the available evidence, including the applicant’s oral evidence and familiarity with Kyrgyzstan, supports her claim to be a Kyrgyzstan national. Kyrgyzstan is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing her claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept she has the identity claimed.  

11. The applicant’s narrative is centred on her now divorced husband [Mr A’s] business interests in Kyrgyzstan. They married in 2011, and she claims that from January 2012 a business partner [Mr B] had pressured her to get [Mr A] to sell his majority share of the business to [Mr B]. She claims in January 2012 she was poisoned and hospitalised after a dinner with [Mr B], and in July 2013 some unidentified men- she believes sent by [Mr B]- tried unsuccessfully to enter her apartment. She last departed from Kyrgyzstan in March 2014 and she states she fears to return to Kyrgyzstan because she will continue to be viewed as her husband’s representative, and so [Mr B] will harm her.

12. I accept that the applicant married [Mr A] [in] September 2011 (Marriage Certificate provided), they separated in May 2014 in Australia, and she divorced him under Kyrgyzstan law [in] May 2016 (Divorce Certificate provided). I accept the marriage had been genuine and that she had travelled to Australia to visit him in September-October 2012, December 2012-January 2013, September-November 2013 and in March 2014.

13. I accept that [Mr A] had 60% shares in [Company 1]. I accept the applicant worked as an [Occupation 1] in [Mr A’s] business in Kyrgyzstan, and [in] July 2013 [Mr A] provided her with a Power of Attorney to represent his interests in the business (Power of Attorney in Russian and English provided). Then a month later on [in] August 2013 the applicant gave a Power of Attorney to a lawyer in Kyrgyzstan to represent [Mr A’s] interests in the business (Power of Attorney in Russian and English provided).

14. At hearing she stated she had not worked in the business after she returned to Kyrgyzstan in late 2013, but as discussed at hearing this is different to her evidence at the delegate’s interview where she said from June/July 2013 she had attended work once or twice a week although she stopped receiving her salary and this situation continued after she returned to Kyrgyzstan.[2] The submission of 6 December 2018 submits ‘She understands the importance of this issue but even until present she can not properly restore in her memory when and how exactly she finished her employment’. I cannot discount the possibility that the applicant does not now remember exactly when she stopped working in the business. Nonetheless, I accept her evidence at her interview on 21 April 2016 that after June/July 2013 when she was in Kyrgyzstan she had attended work once or twice a week although she stopped receiving her salary and this situation continued after she returned to Kyrgyzstan in November 2013.

    [2] As discussed in the delegate’s decision, provided by the applicant to the Tribunal, at page 7

15. I accept there had been a business dispute between [Mr A] and the business partner [Mr B] as shown by the following documents provided to the Tribunal: a Claim document dated [February] 2014 from [Mr A] and with the lawyer as his representative and against [Mr B] concerning misappropriation of property in August 2011; and other documents that ostensibly show the claim was rejected on [in] May 2014 but with an appeal right.

16. However, I have strong concerns with the applicant’s narrative and evidence about [Mr B] harming and seeking to harm her.

17. First, the applicant has given changeable evidence about when and how she finished her employment with the business. In her application she stated she had been employed as an [Occupation 1] in the business to March 2014. At hearing the applicant at first stated she was not sure when she stopped working. She then said when she returned to Kyrgyzstan in January 2013 she had been working fulltime and sometimes she took leave, and by July 2013 because conflicts with [Mr B] had increased she was provided a Power of Attorney by [Mr A]. She said that after she returned to Kyrgyzstan in November 2013 she stopped working in the business. I then put to the applicant that this differed from her past evidence including her evidence at the delegate’s interview[3] where she had said in June or July 2013 she only attended work once or twice a week and this situation continued when she returned to Kyrgyzstan in November 2013. The applicant responded that maybe she was confused. The post-hearing submission of 6 December 2018 stated the applicant admits there were discrepancies in her evidence about how she quit her employment in Kyrgyzstan but submitted she was in a state of stress and depression at that time and at the time of hearing and so she could not clearly remember when and how exactly she finished her employment. However, as discussed in my foregoing discussion, at hearing the applicant did not raise any claims of stress and depression affecting her memory of past events beyond saying maybe she had been confused. Her protection claims are centred on [Mr B’s] actions and the pressure he put on her in the business in Kyrgyzstan in the period from January 2012 to March 2014- a period not long in the past. When and how exactly she finished her employment is significant in her narrative and while I acknowledge that the applicant may have forgotten some details of her life in Kyrgyzstan in that period, I do not accept that she has forgotten everything about when and how she finished her employment. I find that, as she said at the delegate’s interview[4], from June/July 2013 she attended work once or twice a week and this situation continued when she returned to Kyrgyzstan in November 2013. In sum, the applicant’s changeable evidence about when and how she finished her employment with the business raise credibility concerns.

    [3] As discussed in the delegate’s decision, provided by the applicant to the Tribunal, at page 7

    [4] As discussed in the delegate’s decision, provided by the applicant to the Tribunal, at page 7

18. Second, in the applicant’s narrative, in December 2011 she and [Mr A] and his mother together with [Mr B] and family holidayed in [Country 1], but during the trip [Mr A] had a conflict with [Mr B] concerning the business. [Mr A] feared [Mr B] and so departed Kyrgyzstan in December 2011 and never returned. The applicant returned to Kyrgyzstan from [Country 1] and on her return in January 2012 she had dinner with [Mr B] who verbally threatened her about the sale of the husband’s majority shares in his favour. She claims that “After dinner I got the infectious diseases and was admitted to hospital being diagnosed with poisoning”.[5] She claims she was hospitalised for about a week, but she was unable to get evidence because: “I wanted to write a statement to the police about the poisoning. But it appeared that [Mr B] negotiated with doctors and they told me that I was not poisoned but brought sickness from [overseas]”.

    [5] Her statement in the application

19. At hearing I pointed out that ostensibly she had been unable to get any evidence of poisoning from the hospital because she had not in fact been poisoned. The applicant responded that initially the doctors said she was suffering from poison but later said it had not been poisoning. A submission of 6 December 2018 submitted that the applicant: is positive the hospital administration issued her with an incorrect medical certificate simply to avoid a problem with possible police investigation; clearly remembers that she was told initially by hospital staff that she was diagnosed with poisoning; understands that [Mr B] convinced hospital staff not to mention poisoning. But as discussed at hearing, such an early diagnosis can reasonably change after further medical tests and investigations. She was merely speculating that [Mr B] had influenced hospital staff to change a diagnosis. Based on the evidence before the Tribunal she had been unable to get any evidence of poisoning and the hospital had concluded she had not been poisoned. As well, the applicant stated at hearing that [Mr B] just wanted to scare her, but as I pointed out it is difficult to accept that [Mr B] attempted to persuade [Mr A] to sell his shares by poisoning her at a dinner so soon after the dispute arose. In sum, I cannot discount the possibility that the applicant was briefly hospitalised in January 2012 for an ailment, but I do not accept that the applicant had been poisoned by [Mr B] at a dinner in January 2012.

20. Third, in her application she discussed how in July 2013 [Mr B] had called her a couple of times and demanded she convince her husband to sell the shares. After she refused [Mr B] sent some of his men to her home to beat her but they could not open the door and they ran away when the police arrived, and she then wrote a statement to the police station in Bishkek. But when I examined her narrative at hearing she failed to mention this occurrence, and even after I queried whether anything else had happened to her in Kyrgyzstan she said no. I have considered the applicant’s post-hearing submission that she has memory loss about all the actions she undertook four years ago. However, the circumstances of her life in Kyrgyzstan are not long in the past and this occurrence had been a significant claim in her application concerning [Mr B’s] conduct towards her, and as I put to her at hearing, her failure to mention it- until prompted- raises credibility concerns.

21. After my prompting, the applicant discussed the occurrence in July 2013. She stated an unknown number of unidentified men bashed on her door one night but she did not open the door and they fled when police arrived. But as I next put to the applicant, her account of this occurrence is significantly different to the sole police report dated [June] 2014 that stated [in] July 2013 an unknown person who “was drunk and without cause inflicted her bodily injuries in the face area”. The applicant then responded that the police report concerns another occurrence. However, as I put to her, in her application she had claimed just the one occurrence in July 2013 and she had ostensibly provided the sole police report dated [June] 2014 to support her claim about the July 2013 occurrence but the report merely concerned an unrelated assault. As well, even after my prompting at hearing she had only discussed the one occurrence in July 2013 and she did not discuss a second occurrence of being hit by a drunk man and how that related to her claims about [Mr B]. The submission of 6 December 2018 merely submits that the applicant is positive that ‘assaults she was subjected to was orchestrated’ by [Mr B] but without particularising those ‘assaults’. I find the applicant’s changeable evidence about whether in July 2013 there had been one attempted assault (her application) or an attempted assault and an assault by a drunk man raises credibility concerns.  

1. In sum, my credibility concerns lead me to reject all of the applicant’s claims about occurrences in July 2013 instigated by [Mr B]. I do not accept that in July 2013 [Mr B] sent some of his men to her home to beat her. As well, the police report she provided does not relate to the occurrence claimed in her application and the details in the report- of a drunk unidentified man who ‘inflicted her bodily injuries in the face area’- ostensibly do not support the applicant’s narrative of being pressured by [Mr B] and I give the report no weight. I do not accept that [in] July 2013 [Mr B] sent a drunk man to assault her.

2. Fourth, as discussed at hearing, her residence for long periods in Kyrgyzstan from 2012 to 2014 does not support her claims to have feared [Mr B] and to have been harmed and seriously threatened by him. The applicant submits that she returned to Kyrgyzstan hoping to resolve the issue with [Mr B] in an orderly manner and supported by her husband and she had no idea that her husband had decided to transfer the problem solving solely to her. However, in her narrative: [Mr A] had departed Kyrgyzstan in December 2011 and never returned because he feared [Mr B]; she had been poisoned by [Mr B] in January 2012; [Mr B] sent men to assault her in July 2013; and she fears [Mr B] will harm her if she returns. Nonetheless, as discussed at hearing, despite all of these claimed circumstances she departed and then returned to Kyrgyzstan to live on several occasions from 2012 to 2014. In particular, after the claimed threats and occurrence in July 2013, she remained in Kyrgyzstan until September 2013 when she travelled to Australia, but then she again returned to Kyrgyzstan in November 2013 and remained there until March 2014. In sum, her residence in Kyrgyzstan and in particular her return there from November 2013 to March 2014 does not support her claims to have been harmed in the past by [Mr B] and to have had a fear of [Mr B] at any time.

3. As well, I accept her evidence at her interview on 21 April 2016[6] that after June/July 2013 when she was in Kyrgyzstan she had attended work once or twice a week although she stopped receiving her salary and this situation continued after she returned to Kyrgyzstan in November 2013. Her attendance at the business after June/July 2013 does not support her claims to have been harmed by [Mr B] and to have had a fear of [Mr B] at any time.

   [6] As discussed in the delegate’s decision, provided by the applicant to the Tribunal, at page 7

4. Fifth, as discussed at hearing, [Mr B] would have scant adverse interest in her now and in the reasonably foreseeable future because she has been divorced since May 2016 and she has no personal or business connections with [Mr A]. The applicant responded that her lawyer advises [Mr B] still considers her to be [Mr A]’s wife, even after her lawyer sent him a copy of the divorce certificate. However, as I put to her, it is difficult to accept that [Mr B] continues to consider she remains married to [Mr A] after sighting a divorce certificate.

   Conclusion

5. In sum, I find the applicant is not a credible witness and that she has concocted her claims about [Mr B] harming and seeking to harm her- for the purposes of seeking Australia’s protection. I accept that the applicant married [Mr A] in September 2011 and she continued to work as an [Occupation 1] in his [Company 1]. I accept there had been a business dispute between [Mr A] and the business partner [Mr B] that led to legal action against [Mr B] as shown by legal documents in 2014. In light of my foregoing credibility findings I am not satisfied that [Mr A] did not return to Kyrgyzstan because he feared [Mr B]. I cannot discount the possibility that [Mr B] sought to pressure and influence the applicant while she worked in the business because she worked there as an [Occupation 1] and she was [Mr A’s] wife at the time. However, I do not accept this pressure and influence rose to the level of serious or significant harm. I reject the applicant’s narrative and evidence about [Mr B] seeking to harm her. I accept that the applicant has advised [Mr B] that she divorced [Mr A], but I do not accept that [Mr B] has indicated he still considers she is [Mr A’s] wife. I cannot discount the possibility that [Mr B] knows and has visited her mother on occasion but I do not accept this shows he will seek to harm the applicant on her return.

1. Having considered the claims and evidence, I accept her claims that:

   ·In 2008 [Mr A] and his business partner [Mr B] founded [Company 1] in Kyrgyzstan.

   ·The applicant married [Mr A] in September 2011.

   ·The applicant was an [Occupation 1] in the business.

   ·In the periods she was in Kyrgyzstan from January 2012 to July 2013 she was pressured by [Mr B] to get the husband to sign documents.

   ·[In] July 2013 her husband gave a Power of Attorney to her concerning the business. [In] August 2013 she gave a Power of Attorney concerning the business to a lawyer.

   ·She was in Australia from [September] to [November] 2013, and then returned to Kyrgyzstan. She returned to Australia on [March] 2014. In Australia she and the husband separated in May 2014.

2. Having considered the claims and evidence, I do not accept her claims that:

   ·At a dinner with [Mr B] in January 2012 she was poisoned.

   ·Some men sent by [Mr B] tried to enter her apartment in July 2013 but fled when the police came.

   ·A man sent by [Mr B], hit her in July 2013.

   ·She fears to return to Kyrgyzstan because she will continue to be viewed as her husband’s representative (as his wife), and [Mr B] will harm her.

   Refugee criterion

3. The applicant is a Kyrgyzstan national with a Kyrgyzstan passport valid to [2022] and she will be able to travel to and enter Kyrgyzstan. When I consider all of the applicant’s personal circumstances and all of my findings about her narrative and evidence together, I accept that in the past the applicant had been pressured by [Mr B] to get the husband to sign business documents, but I do accept this pressure rose to the level of serious harm. I find unconvincing and do not accept her claims that in Kyrgyzstan she had been harmed by [Mr B] and his agents.

4. The applicant is now divorced from [Mr A] and she has had no connection with the business for several years and I do not accept that [Mr B] will have any adverse interest in her now and in the reasonably foreseeable future. I do not accept that [Mr B] will pressure or harm the applicant about the business or for any reason now and in the reasonably foreseeable future.

5. In light of the above assessment, the Tribunal finds that in Kyrgyzstan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if she returns to Kyrgyzstan.

6. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Complementary protection

1. The applicant is a well-educated and mature woman with work experience who has close family in Kyrgyzstan to whom she can return. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kyrgyzstan, there is a real risk that she will suffer significant harm.

2. For the reasons set out above, I have not accepted her claims about [Mr B] harming and seeking to harm her in Kyrgyzstan in January 2012 and July 2013. I accept that [Mr B] sought to pressure and influence the applicant while she worked in the business because she worked there as an [Occupation 1] and she was [Mr A’s] wife at the time. However, I find that this pressure up to the time the applicant last departed Kyrgyzstan in March 2014 did not rise to the level of significant harm. 

3. Subsequently, the applicant has divorced [Mr A] and she has no connection with or business interests in the business. I accept that [Mr B] knows this and I do not accept that [Mr B] has indicated he still considers she is [Mr A’s] wife. I cannot discount the possibility that [Mr B] knows and has visited her mother on occasion but I do not accept this shows he will seek to harm the applicant on her return. In light of her current circumstances I do not accept that [Mr B] or his agents will have any adverse interest in the applicant when she returns to Kyrgyzstan and I do not accept he will seek to pressure her about the business, or seek to harm her, now and in the reasonably foreseeable future.

4. In sum, I find there is no real risk that she will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if she is removed/returns to Kyrgyzstan.

   Overall Conclusion

5. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.